31
CHAPTER 1
1.1 Internal remedies
All internal remedies such as the lodging of an appeal (e.g. if such procedure is provided for in the Main Agreement of the Bargaining Council; if the employee has been informed that he has the right to an appeal; or the parties has agreed that such next step is essential to reach a solution to the dispute) or the formal lodging of a grievance must be exhausted before conciliation by an outside independent mediator or by the relevant Bargaining Council or the CCMA (Commission for Conciliation, Mediation and Arbitration) is sought.
The failure by an employee to lodge an appeal does not prohibit the next step to be instituted, referred to as conciliation, which involves an attempt to reach an agreement. The failure by the employer, on the other hand, to grant the employee the opportunity to lodge an appeal, where such right has been provided, may be regarded by the Arbitrator/Court as an unfair procedure.
It is noted that Schedule 8 of the Labour Relations Act of 1995, "Code of Good Practice: Dismissal", makes no mention of an appeal procedure. If the employer had no appeal procedure and the dispute had come to the CCMA it is likely that the dismissal would have complied with all the requirements for both procedural and substantive fairness.
(NATIONAL UNION FOR SECURITY OFFICERS AND GUARDS AND SECURITY SERVICE).
Where a worker lodges a notice of appeal in terms of the company disciplinary code, the failure to hold an appeal will render the procedure defective.
(PRESIDENT BRAND MINE and NATIONAL UNION OF MINEWORKERS (1993) 14 ILJ 508 (ARB)).
[t]he appeal was simply a forum for rubber stamping the decision of the enquiry. It certainly does not qualify as a cure for a defective disciplinary enquiry.'
(CONSTRUCTION & ALLIED WORKERS' UNION & OTHERS v SABRIX (PTY) LTD (1996) 1 LLD 25 (IC)).
Section 191 (1) of the Labour Relations Act, no 66 of 1995 (the LRA) as amended by the Labour Relations Amendment Act, no 12 of 2002 (the amended LRA) provides in subsection (a)(i) that after a final decision was made by the employer to dismiss, an employee my also refer the dispute to the CCMA (if they have jurisdiction).This implies that if the employer only makes a final decision after the employee has appealed against his dismissal, the employee is still allowed to lodge a dispute (within the applicable 30-day or 90-day period). The employee needs to ascertain weather the date of notice of dismissal, or the date of denial of the appeal shall serve as the date of the final decision.
(ito amendment on 1 August 2002)
Section 191 (2A) of the LRA, as introduced by the new LRA, provides that an employee may also refer the dispute after receiving the notice of termination of the employment contract. This entails that the employee, while still serving the notice period, my also refer the dispute. Such referral shall not be regarded to be premature.
(ito amendment on 1 August 2002)
1.2 Deadlock: dismissal/ Unfair Labour Practice / dispute of mutual interest
At the time the parties have recognised that a dispute can not be resolved internally, the parties have probably reached an impasse. Such event occurs on the employee’s dismissal; the unilateral change to the employee’s conditions of service; the breach of the contract of employment; or any other unfair labour practice recognised by our law, has allegedly been committed. The deadlock is reached when the employer is committed to implement his decision and that no further consultation on the issue would be allowed. (See also NATIONAL UNION OF MINEWORKERS v BLACK MOUNTAIN MINERAL DEVELOPMENT CO (PTY) LTD (1997) 18 ILJ 439 (SCA), CHEMICAL WORKERS INDUSTRIAL UNION & OTHERS v SOPELOG CC (1994) 15 ILJ 90 (LAC), EAST RAND GOLD & URANIUM CO LTD v NATIONAL UNION OF MINEWORKERS, LABOUR APPEAL COURT (TRANSVAAL DIVISION) (1989) 10 ILJ 683 (LAC),NATIONAL UNION OF METALWORKERS OF SA V MACSTEEL (Pty) Ltd 1992 (3) SA 809 (A)) In any event, impasse ('dooie punt') by its very definition implies the end of negotiation.
A final impasse had not even occurred: the meeting in October gave him another chance to present an alternative and when he resigned it was stated that the new system was open to change. Nothing prevented him from remaining in employment and pursuing his remedies internally, or even approaching the Industrial Court for relief whilst remaining in employment.
(W L OCHSE WEBB & PRETORIUS (PTY) LTD v VERMEULEN (1997) 18 ILJ 361 (LAC))
Once bona fide impasse reached direct approach to employees permitted - Must be same offer as that offered to and rejected by union. In any event, impasse by its very definition implies the end of negotiation. The final offer has in a sense already been negotiated, and the making of the offer to the union members, as well as the fact that this is directly made, in no way can be considered to be a disparagement of the representative status of the union.
(FOOD & ALLIED WORKERS UNION v KO-OPERATIEF WIJNBOUWERS VERENIGING VAN ZA BEPERKT, WORCESTER (1994) 15 ILJ 1065)
To put it differently, at the time when the employee is not allowed to influence the employer’s decision in any manner, apart from relying on the dispute resolution procedures created by the law (also revered to as remedies to such employee’s disposal), the negotiations have terminated.
1.3 Formalities
The referral of a matter to conciliation is a simple and relatively unsophisticated action. The Labour Relations Regulations provides various forms that are applicable to the referral of disputes. The form contains guidelines on how to complete the form. See Government Notice R1737 in Government Gazette no.17516 of 1 November 1996 [i] (Maseko and Entitlement Experts, Jacobs and Otis Elevator Co. Ltd.).
The correct forms, as referred to hereunder, must be duly completed and signed by the referring party. Included therein should also be proof of service on the other party, such as a fax statement or a registered mail slip.
At the conclusion of these proceedings …did not necessarily preclude her from renewing her referral of her alleged dispute to the CCMA with a proper citation of her factual employer… it would be my recommendation that the necessary simultaneous application for condonation of the late filing of that reference should, in all the circumstances of the matter, most certainly be condoned
Bhandi and Kelly Girl Temp Services/ First Direct
The proper service of the form on the other party is affected as determined in General Regulations 2 to the Labour Relations Regulations.
1.4 The referral of a dispute under the auspices of the CCMA (unfair dismissal, or any other dispute as referred to in general regulation 11 (2)).
Disputes shall be referred to the CCMA on one of the following forms:
Section / Purpose / Annexure/Form38(3) / Referring a public service jurisdictional dispute for conciliation / LRA 3.12
73(1) / Referral of dispute for essential services determination / LRA 4.2
135 / Referring a dispute to the Commission for conciliation / LRA 7.11
PROVINCE IN WHICH DISPUTE IS TO CONCILIATED
4.1. A dispute should be conciliated in the province in which it arises.
4.2. In exceptional circumstances, either party may request the CCMA to arrange for a conciliation to be held telephonically if –
(a) the circumstances justify such an arrangement; and
(b) if it is practical do so.
4.3. If the parties to the dispute are employers and employees in more than one province and the head office of the parties are in different provinces, a national senior commissioner from the Head Office of the CCMA must endeavour to reach agreement with the parties to the dispute as to the venue for the conciliation. If no agreement is reached, the national senior commissioner must decide the venue.
(See clause 4 of the CCMA GUIDELINES ON CONCILIATION PROCEEDINGS-GN896 GG18936 on 5 June 1998)
41. What words mean in the CCMA rulesAny expression in these rules that is defined in the Labour
Relations Act8, 1995 (Act No. 66 of 1995), has the same
meaning as in that Act and
“Act” means the Labour Relations Act, 1995 (Act No. 66 of
1995), and includes any regulation made in terms of that Act;
“association” means any unincorporated body of persons;
“Commission” means the Commission for Conciliation
Mediation and Arbitration established by section I12 of the Act;
“commissioner” means a Commissioner appointed in terms
of section 1 I 7 of the Act;
‘‘con-arb” means proceedings held in terms of section 191 (5A);
“deliver” means serve on other parties and file with the
Commission:
“Director” means the Director of the Commission appointed in
terms of section 118 of the Act, and includes any person
delegated by the director to perform any of the functions of the
director;
‘file’ means to lodge with the Commission in terms of rule 7;
‘Labour Court” means the Labour Court established by section
I51 of the Act and includes any judge of the Labour Court;
‘‘party’’ means any party to proceedings before the
Commission;
“provincial registrar” means the provincial registrar of the
Commission appointed in terms of section 120 of the Act in each
of the provinces, or any other person authorised to act in the
place of the Provincial Registrar;
“public holiday” means a public holiday referred to in section
1 of the Public Holidays Act, 1994 (Act No. 36 of 1994);
“rules” means these rules and includes any footnote to a rule;
The following words used in the rules are defined in section 213 of the Act : dispute, dismissal, employee, employers‘ organisation, trade union, and workplace.
“senior commissioner” means a senior commissioner
appointed in terms of section 117 of the Act and includes any
person delegated by the senior commissioner to perform any of
the functions of the senior commissioner;
“serve’’ means to serve in accordance with rule 5 and “service”
has a corresponding meaning; and
“taxing offices” means any employee of the Commission
appointed by the Director in terms of rule 39.
(see CCMA rule 41 promulgated on 1 August 2002 in Government
Gazette no 23611 dated 25 July 2002)
SERVING AND FILING DOCUMENTS
1. How to contact the Commission
(1) The addresses, telephone and telefax numbers of the offices of
the Commission are listed in Schedule One to these rules.
(2) Documents may only be filed with the Commission at the addresses or telefax numbers listed in Schedule One.
2. When are the offices of the Commission open
(1) The head office and the provincial offices of the
Commission will be open every day from Monday to
Friday, excluding public holidays, between the hours of
08h30 and 16h30, or as determined by the Commission.
(2) Documents may only be filed with the Commission
during the hours referred to in subrule (4).
(3) Notwithstanding subrule (2), documents may be faxed at
any time to the Commission.
3. How to calculate time periods in these rules
(1) For the purpose of calculating any period of time in terms of
these rules -
(a) day means a calendar day; and
(b) the first day is excluded and the last day is included, subject
to subrule (2).
(2) The last day of any period must be excluded if it falls on a
Saturday, Sunday, public holiday or on a day during the period
between 16 December to 7 January.
4. Who must sign documents
(1) A document that a party must sign in terms of the Act or these
rules may be signed by the party or by a person entitled in terms
of the Act or these rules to represent that party in the
proceedings.
(2) If proceedings are jointly instituted or opposed by more than one
employee, documents may be signed by an employee who is
mandated by the other employees to sign documents. A list in
writing, of the employees who have mandated the employee to
sign on their behalf must be attached to the referral document.
5. How to serve documents on other parties
(1) A party must serve a document on the other parties –
(a) by handing a copy of the document to
(i) the person concerned;
(ii) a representative authorised in writing to
accept service on behalf of the person;
(iii) a person who appears to be at least 16
years old and in charge of the person's
place of residence, business or place of
employment premises at the time;
(iv) a person identified in subrule (2);
(b) by leaving a copy of the document at -
(i) an address chosen by the person to receive
service;
(ii) any premises in accordance with subrule (3);
(c) by faxing or telexing a copy of the document to the
person's fax or telex number respectively, or a
number chosen by that person to receive service;
(d) by sending a copy of the document by registered - post
or telegram to the last-known address of the party or an
address chosen by the party to receive service.
(2) A document may also be served-
(a) on a company or other body corporate by handing a
copy of the document to a responsible employee of
the company or body at its registered office, its
principal place of business within the Republic or its
main place of business within the magisterial district
in which the dispute first arose;